If you found it on the Internet, is it public domain — meaning unprotected by copyright? No. And believing that material on a website or in an e-mail is freely copyable is one of many ways you can get yourself in trouble. And it's wrong.

Copyright and fair use guidelines have changed since the advent of digital copies and the Internet, which in effect make the Internet a big copying machine. But copyright law still exists — copyright is, indeed, provided for in the U.S. constitution — and it is important to understand both how to protect your own rights and how not to violate those of others. In many ways, U.S. authors are not protected as well as authors in other countries; U.S. copyright follows the Berne convention in many ways, for example, except in protecting authors' "moral rights." As with other sections of this website, I will add more links and information as I find time. The copyright and fair use "quiz" that I provide when I teach a course on copyright basics is a good way to find out what you know and don't know about copyright. If I can figure out a way to incorporate a self-administered quiz in the framework of this Authors Guild website template, I will do so. In the meantime, click here for a copyright tutorial quiz from an excellent University of Texas website. Save yourself grief by mastering the basics of essential terms: copyright, licensing, fair use, public domain, open source, Creative Commons, work-for-hire, and various forms of rights.

Writers: Be grateful to Dan Carlinsky, who years ago started teaching us that as copyright owners we own the rights to our works. We do not "sell" an article to a magazine but "license" it. Thanks, Dan, for starting an educational campaign we really needed. You in publishing: Pay attention. You, too, may be an author one day. Creators of all types: You should generally "license" use of your work rather than sell (or give) the copyright to someone. And be knowledgeable about which rights you are licensing. As a freelance journalist, you are typically granting a periodical "first rights" or "one-time rights," but you are retaining the copyright (unless you give in to a greedy publisher). Photographers have been better than writers about watching out for their rights. A photographer, for example, licensing use of a photo in a book might charge various fees for additional licenses -- for use of the photo inside a book (one fee), on the cover (a second fee), in marketing materials (an additional fee), on merchandise such as a mug or tee shirt (yet another fee). And generally as a photographer you would want to retain the right to use the photo yourself -- as a print, say, and in your own promotional materials.

Similarly, when you are clearing permissions, you need to specify which rights you are asking for. The more limited the rights, the smaller the audience or printing, and the lower the price of what you are selling, the lower the fee, generally.

In the United States, as soon as you create a work and fix it in tangible form, copyright law protects it. You don't need to register copyright. In the past, U.S. law required authors to affix a copyright notice to their works; Congress eliminated that requirement in 1989. But if you want to collect damages for copyright infringement, you must register copyright. If a registered work is later infringed, the creator can recover actual damages (the fee that would normally have been paid for the use), as well as statutory (punitive) damages and legal fees. A work that is infringed and has not been registered can only generate actual damages (and in most cases the cost of the suit far exceeds recoverable moneys).

To register a work, submit a completed application form, a nonrefundable filing fee, ($35 if you register online or $50 if you register using Form CO); and a nonreturnable copy or copies of the work to be registered. See Circular 1, Copyright Basics, section “Registration Procedures.” E-filing takes much less time. Paper filing takes time partly because all mail (U.S. Postal Service) has to be screened offsite, as a security measure.

• How long does copyright last? From the U.S. Copyright Office: "The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule [bullets added}:
---For works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. (What happened to the "life plus 50 term": Senator Orrin Hatch’s Introduction of The Copyright Term Extension Act of 1997. Copyright on the Disney movies was going to expire and the Disney Studios wanted longer protection. Copyright, developed to protect authors and other "creators," was now also to serve the "copyright industries," which contribute so much to GDP.
---For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.
---For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3 of the Copyright Act (title 17 of the United States Code).
---Works created on or after January 1, 1978, are not subject to renewal.

Public domain. When do works of intellectual property enter the public domain (become copyright free)?
• Copyright Term and the Public Domain in the United States (PDF, Cornell University's Copyright Information Center)
• When U.S. Works Pass into the Public Domain (Lolly Gasaway's wonderfully clear chart)
• Welcome to the Public Domain (useful page from Stanford University Libraries)
• Copyright Renewal Database (Stanford Library, searchable database of copyright renewal records U.S. Copyright Office received between 1950 and 1992--that is, covering works published in the period 1923-1962). Works published before 1923 are generally in public domain; works published after Jan.1, 1964, generally have copyrights automatically renewed, by statute. For works published between those dates, copyright had to renewed after the first term of registration or copyright expired. Tracking down which copyrights expired or were renewed took time and trouble; this database makes searches easier.
• Public Domain in the United States (Cornell Law's excellent chart on when copyright terms expire under various circumstances--published works, unpublished works, works by foreign nationals, sound recordings, architectural works, etc.)
• The Public Domain in the United Kingdom (and Other Countries) by Tony Laidig, whose blog Public Domain Blog us full of interesting things like Pimping the Public Domain (where you can download a PDF document about marketing nostalgic PD merchandise.
• The Society of Authors (UK) Guides and Articles, many, many useful articles and guides, including Quick Guide to Copyright and Moral Rights (PDF). Slight charge for nonmembers on many items.
• Is It Protected by Copyright? (Digital copyright slider, by Michael Brewer, American Library Association). Slide red carat sign along right to identify when a work was published and the answer will pop up bottom left.
• Bound by Law? Tales from the Public Domain (clever online comic book explanation of copyright law, by Keith Aoki, James Boyle, and Jennifer Jenkins, for the Duke Center for the Study of Public Domain)
• How Can I Tell When Copyright Was Renewed? (the Online Books Page, edited by John Mark Ockerbloom)
• The U.S. copyright office offers a search service to investigate whether a work is under copyright protection. Go here for a search request estimate (currently $165 per hour or fraction thereof, 2-hour minimum). See also the entry How long does copyright last?
• Famous writers and books in the public domain (Cinemoose)
• List of public domain music (Public Domain Information Project, PD Info). On their website, under Royalty-free Music , PD Info says "There are no public domain sound recordings in USA." There is a difference between the (sheet) music and recorded music!
• 5 Misconceptions About Public Domain Work (eBay guide 2-8-10)
• The Hole in Our Collective Memory: How Copyright Made Mid-Century Books Vanish (Rebecca Rosen, The Atlantic, 7-30-13). A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan. "Copyright correlates significantly with the disappearance of works rather than with their availability."
• The Public Domain (Opinion, NY Times, 10-11-11). In Golan v. Holder, a lawsuit "brought by orchestra conductors, educators and others who challenged Congress’s ability to restore copyright protection to foreign works that had been in the public domain for decades" (including Prokofiev's “Peter and the Wolf”). Congress had restored copyright as part of the Uruguay Round Agreements Act. From Wikipedia summary: "The US Supreme Court held on January 18, 2012 that Section 514 of the Uruguay Round Agreements Act does not exceed Congress's authority under the Copy­right Clause, and the court affirmed the judgment of the lower court by 6-2, with the opinion written by Justice Ginsburg.[3][4] The practical effect of the decision is to confirm that works once free to use, such as Prokofiev's Peter and the Wolf, are no longer in the public domain and are subject to use only with the permission of the copyright holder, such as through paid licensing."

• Crooner in Rights Spat (Louis Menand, New Yorker, 10-20-14) An excellent overview of copyright principles and a provocative analysis of the "dispute between analog-era and digital-era notions of copyright," of historical changes in copyright principles, of the "limited-term, public-domain conception [called] the Anglo-American conception and the much stricter real-property, moral-rights conception the European conception."
"Hollywood," writes Menand, "along with the music industry and the publishing industry, which are the other major analog-era corporate interests, makes money by producing and distributing content. Silicon Valley makes money by aggregating other people’s content. Hollywood fears pirates; Silicon Valley fears paywalls. Silicon Valley accuses Hollywood of 'monopoly' and 'artificial scarcity,' and talks about the democracy of the Internet. Hollywood accuses Silicon Valley of 'free riding' and 'contributory infringement,' and talks about protecting the dignity of the artist. But each side is only trying to defend its business model." The concerns of freelance writers differ greatly from those of academic writers. And so on, with a clear-eyed overview of issues. (The crooner example is just that: an example.)
• The Next Great Copyright Act (26th Horace S. Manges lecture, by Maria A. Pallante, Register of the U.S. Copyyright Office. Notes on, and reactions to, the lecture:
~ARL Policy Notes (main points of the talk, Greg Cram, Rights Clearance Analyst, The New York Public Library)
~The Clyde Fitch Report Major copyright issues Congress must consider include exclusive rights, incidental copies, enforcement, the Digital Millennium Copyright Act (DMCA), digital first sale, exceptions and limitations, licensing, deposits for the Library of Congress, offsetting copyright term, making room for opt outs, and making the law more accessible, i.e. readable.
~Takeaways (Future of Music Coalition) "Pallante called the lack of a public performance right for over-the air (AM/​FM) broadcasts “indefensible.” We agree; by not compensating performers for radio play, America is in the company of North Korea and Iran."
~Columbia Law School "The last intense policy period in copyright law occurred in the mid-90s with the passage of the Copyright Term Extension Act and the Digital Millennium Copyright Act, which, among other things, extended copyrights and criminalized technology that circumvents copyright controls, respectively. But as technology continues to evolve, Pallante said it is time to revisit those laws and analyze their effects."

• Copyright Law of the United States and Related Laws Contained in Title 17 of the U.S. Code. Includes amendments.
• USC Title 17 (preliminary release, as posted by Cornell's Legal Information Institute)
• Copyright Act of 1976, the core of U.S. copyright law now (plus amendments), went into effect Jan. 1, 1978. This link is to a helpful Wikipedia entry.
• Title 18--Crimes and Criminal Procedure, U.S. Code (Appendix H). [This entry is incomplete and puzzles even me. I know it's here for a reason but I'm not sure why.]
• Copyright Claims in Architectural Works (Circular 41). An original design of a building created in any tangible medium of expression, including a constructed building or architectural plans, models, or drawings, is subject to copyright protection as an “architectural work” under section 102 of the Copyright Act (title 17 of the United States Code), as amended on December 1, 1990. Copyright protection extends to any architectural work created on or after December 1, 1990. Also, any architectural works that were unconstructed and embodied in unpublished plans or drawings on that date and were constructed by December 31, 2002.
• Copyright Term Extension Act (CTEA, of 1998) Also known as the Sonny Bono Copyright Term Extension Act or the Mickey Mouse Protection Act, as well explained on Wikipedia: This act "effectively 'froze' the advancement date of the public domain in the United States for works covered by the older fixed term copyright rules," so works that would otherwise have entered the public domain (including Disney movies) would not.
In a piece called 5 Ways The Google Book Settlement Will Change The Future of Reading, Annalee Newitz wrote: "Known to policy-makers as the Copyright Extension Act, it was the result of intensive lobbying by the entertainment industry, led in part by Disney, to extend the copyright on any work created after 1923. Many of Disney's classic pieces of content, like Mickey Mouse cartoons, were about to pass into the public domain. So the company was naturally interested in keeping control of the Mouse as long as it could....The Act also gave birth to a loosely organized but powerful movement of copyright reformists....Over the past decade, many of these reformists migrated to jobs in Silicon Valley, where easily-copied digital media are constantly forcing the question of what copyright really means in the information age."
• The Digital Millennium Copyright Act of 1998 (DMCA) (PDF, U.S. Copyright Office). See section on DMCA and takedown notices further down on this website.
• FBI Anti-Piracy Warning Seal. Effective August 13, 2012, the new 41 CFR Section 128-1.5009 authorizes use of the APW Seal by all U.S. copyright holders, subject to specific conditions of use. Copyrighted works can include, but are not limited to, films, audio recordings, electronic media, software, books, photographs, etc.
• Distance Education and the TEACH Act (2002). The Technology, Education, and Copyright Harmonization (TEACH) Act (2002) redefines the terms and conditions under which accredited nonprofit U.S. educational institutions may use copyright-protected materials in distance education--including on websites and by other digital means--without permission from the copyright owner and without payment of royalties. See also the UCCopyright (University of California) on the TEACH Act. • Copyright in the U.K. (Intellectual Property Office, U.K.)
• Intellectual Property Organization (WIPO) Copyright Treaty /a>
• WIPO directory of intellectual property offices around the world
• Copyright Watch (Electronic Frontier Foundations searchable database of copyright laws from around the world)
• European Commission (helpful information and links to information about European Union countries)

Fair Use, A Primer

Under the "fair use" principle of copyright law, you may make limited use of someone else's copyrighted work without asking permission or infringing on their copyright. Fair use, a significant limitation on a copyright owner's exclusive rights, is based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. If a copyright owner disagrees with your interpretation of what's fair use of their material, your dispute may have to be settled by litigation or arbitration. Judges use four factors in resolving fair use disputes:
1) The Transformative Factor: The Purpose and Character of Your Use
2) The Nature of the Copyrighted Work
3) The Amount and Substantiality of the Portion Taken
4) The Effect of the Use Upon the Potential Market
* The "Fifth" Fair Use Factor: Are You Good or Bad?)

• The 'Fair Use' Rule: When Use of Copyrighted Material Is Acceptable (Nolo, by Stephen Fishman?).
Fair use factors are explained helpfully with these rules as headings:
Rule 1: Are You Creating Something New or Just Copying?
Rule 2: Are You Competing With the Source You're Copying From?
Rule 3: Giving the Author Credit Doesn't Let You Off the Hook
Rule 4: The More You Take, the Less Fair Your Use Is Likely to Be
Rule 5: The Quality of the Material Used Is as Important as the Quantity

"Fair use," says the Authors Guild, "is a defense to copyright developed by American courts to reconcile copyright protection with free expression. It’s rather vaguely defined and its application varies greatly from case to case. Many other countries, including Australia, recognize a similar but much more carefully enumerated exception to copyright known as fair dealing."
• Copyright and Fair Use Cases (Stanford University Library's comprehensive list, links to, and summaries of, all relevant federal cases)
• The Betamax Case, (Sony Corp. of America v. Universal City Studios, Inc., 1984). How courts reasoned about the first-use doctrine in the decision on the American film industry's first legal response to the home video revolution: "time-shift" programming (copying a program to watch later, in the home) was fair use. "At first, the major studios believed that the only logical way to market videocassettes was direct sales, reasoning that consumers wanted to buy cassettes and create 'libraries' in much the same way as they acquired record albums. But people preferred renting to buying and as the situation stood, retailers and not film producers initially wrung most of the profits from the market. After purchasing a cassette for around $40 wholesale, a retailer could rent it over and over at a nominal charge. In contrast, the film company's profit would be small, less than a few dollars after materials, duplication, and distribution costs had been covered." That decision legally enabled development of the consumer electronics industry. For more details, see Wikipedia on Sony Corp. of America v. Universal City Studios, IncElectronic Frontier Foundation (on how the Betamax case figures in lawsuits against peer-to-peer copying on other electronic devices). In July 2013, reports the Washington Post, the U.S. Court of Appeals for the Ninth Circuit, in Fox Broadcasting v. Dish Network, says digital recorders that allow automatic skipping of ads do not violate copyright. ("Commercial-skipping does not implicate Fox's copyright interest because Fox owns the copyrights to the television programs, not to the ads aired in the commercial breaks," wrote Judge Judge Sidney Thomas. (See In Dish Network Case, Ninth Circuit Applies Dated Precedent to New Copyright Claim(The Recorder, 7-24-13).
• Harper & Row v. Nation Enterprises. Nation magazine scooped former President Gerald Ford's memoir on his account of his decision to pardon Nixon. The U.S. Supreme Court ruled that "fair use is not a defense to the appropriation of work by a famous political figure simply because of the public interest in learning of that political figure's account of an historic event."
• Court Filing Ends AG v. HathiTrust Copyright Litigation (Authors Guild, 1-8-14). Court papers filed yesterday evening brought to an end the Guild’s copyright infringement lawsuit against the group of research libraries known as the HathiTrust. The Guild claimed the library group infringed by reproducing copyright-protected books for inclusion in its HathiTrust Digital Library, a searchable database. The case arose in June 2011 when the HathiTrust announced its “Orphan Works Project,” which would begin freely distributing digital copies of “orphan works”—books that are still under copyright, but whose rightsholders cannot be found. The Guild had demonstrated that the copyright owners of most of the books were easily found, forcing HaithiTrust to acknowledge that its search methodology was flawed. HathiTrust abandoned the Orphan Works Project shortly after the lawsuit was filed.
• A legal sweep (Inside Higher Education, reporting on Authors Guild vs. Hathi Trust: In its suit, the Authors Guild objected to the libraries' decision to make limited use of its holdings -- such as making digital book copies available to disabled students and allowing researchers to search the full digital texts for keywords -- without paying for permission. "Protecting the rights of disabled students appeared to play a crucial role in the judge's decision." The judge also ruled that "using the digital copies to power a discovery tool that queries the full texts of all the works in the database was sufficiently 'transformative' as to qualify it for exemption under the fair use provision." See also:
• Narrow Fair Use Ruling Permits Limited Library Uses, Shoots Down Replacement (Authors Guild 6-11-14). The Second Circuit decision in Authors Guild v. HathiTrust "while approving two very limited uses of the database—for word search and display to the disabled—emphasized that the decision did not extend to the display of the text of the books to all HathiTrust users, or even authorize universal display of snippets.
• Documentary Filmmakers Win Exemption From Digital Millennium Copyright Act (PRWeb, 7-28-10). "Documentary Filmmakers Granted Access to Previously Off Limits DVD Content, Restoring Their Fair Use Rights" -- From the Library of Congress: Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works.
• “Orphan Works” Unresolved in HathiTrust Ruling (Authors Guild blog). Oct. 12, 2012: Ending a year-long lawsuit over a shared digital repository based at the University of Michigan, US District Court Judge Harold Baer ruled that the mass book digitization program conducted by five major universities in conjunction with Google is a fair use under US copyright law. Under that program, Google has converted millions of copyright-protected library books into machine-readable files, duplicating and distributing the digitized books to university libraries. The universities pooled the digitized books into an online database organized by the University of Michigan known as HathiTrust. "We disagree with nearly every aspect of the court’s ruling. We’re especially disappointed that the court refused to address the universities’ “orphan works” program, which defendants have repeatedly promised to revive. A year ago, the University of Michigan and other defendants were poised to release their first wave of copyright-protected, digitized books to hundreds of thousands of students and faculty members in several states. The universities had deemed the authors of these books to be unfindable." Within two days of filing its suit, the AG found "that the “orphans” included books that were still in print, books by living authors, books whose rights had been left to educational and charitable institutions in the U.S. and abroad, books represented by literary agents, and books by recently deceased authors whose heirs were easily locatable." For more, see Orphan Works legislation.
• LCA Comments on Authors Guild v. HathiTrust Decision (ACRL Insider, 10-11-12). Judge Baer decided that the HathiTrust Digital Library's (HDL) use of digitized works is a fair use permitted under the Copyright Act. The judge's key holding: "I cannot imagine a definition of fair use that would not encompass the transformative uses made by [HDL] and would require that I terminate this invaluable contribution on the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act]." "The HathiTrust Digital Library is operated by a consortium of universities...Many of the 10 million digital volumes in HDL were provided by Google in exchange for the universities' allowing Google to scan books in their collections for the Google Library Project. Among other holdings:
--The creation of a search index is a transformative use under the first fair use factor: "The use to which the works in HDL are put is transformative because the copies serve an entirely different purpose that than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material."
--The use of digital copies to facilitate access for the print-disabled is also transformative. Because print-disabled persons are not a significant potential market for publishers, providing them with access is not the intended use of the original work.
--The goals of copyright to promote the progress of science are better served by allowing HDL's use than by preventing it. (See article for full list.)
• Google Scanning Is Fair Use Says Judge (Andrew Albanese, PW, 10-11-12). "The Authors Guild filed its copyright infringement suit, in September of 2011, a parallel action to its case against Google, alleging that the HathiTrust, a digital preservation effort created by a collective of research libraries, was built with millions of 'unauthorized'ť scans created by Google." Baer found "that the scanning of books for the purposes of indexing is indeed a transformative act, with Baer acknowledging that copying entire works is after all necessary to offer full-text searching and access to the print disabled." And "the decision stands a major win for libraries, universities, and proponents of digitization." This cuts to the heart of the AG's suit against Google, which is currently stayed, pending a procedural appeal.
• Why MLK’s 'Dream' Is So Hard to Find Online (National Journal, 8-19-13). Martin Luther King Jr.. filed copyright registration on his "I Have a Dream" speech soon after he gave it. The famous part was not in the written script, but the speech was recorded. An odd court ruling has forced news organizations to pay a fee for showing more than "fair use" parts of the speech.
• Elvis Presley Enterprises Inc. v. Passport Video Passport Video created a 16-hour documentary on the life of Elvis Presley, The Definitive Elvis Presley, which used unlicensed video footage, still photographs, and music owned by Elvis Presley Enterprises, Inc. and other companies and individuals. The Ninth Circuit "found no fair use because the biography was not consistently transformational, was commercial in nature, and was likely to affect the market for the copyrighted works."
• Remix as “Fair Use”: Grateful Dead Posters’ Re-publication Held to Be a Transformative, Fair Use (summary and analysis, Conference on College Composition and Communication). The US Court of Appeals for the Second Circuit upheld the lower court, finding that the use of several Grateful Dead Poster images and other images appearing in a band biography was a “fair use” under section 107 of the US copyright statute. The publisher Dorling Kindersley used without permission seven images of Grateful Dead concert posters or tickets in the book Grateful Dead: The Illustrated Trip. The publisher tried to get permission from the band’s promoter, Bill Graham, for use of some images from Grateful Dead concerts but permission agreements weren't reached because Graham wanted too high a fee. The publisher used the images anyway under fair use, and the court held that it was fair use, because (under the four factors) the images were used in a timeline and for historical purposes rather than for the posters’ original purposes of concert promotion; the biographical book did not exploit the creative aspects of the posters; even though entire images were used, their reduced size was consistent with Dorling Kindersley’s transformative use; and Dorling’s use didn’t harm the potential market because no actual market harm was sustained, and, in this case, the court wouldn’t find market harm based on “hypothetical loss” of revenue. Dorling Kindersley was reusing the original material in a different, historical context, and they were using only the amount needed to give readers a flavor of the time. "The publishing house’s transformative purpose was key to the judicial decisions."
• Judge dismisses lawsuit over Faulkner line in 'Midnight in Paris' (Ryan Faughnder, Los Angeles Times, 7-18-13) In a 17-page ruling, Michael P. Mills, chief judge of the U.S. District Court for the Northern District of Mississippi, said the use of the quote qualifies as a fair use. "At issue in this case is whether a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film can be considered a copyright infringement. In this case, it cannot."
• Long-Awaited Ruling in Copyright Case Mostly Favors Georgia State U. (Jennifer Howard, Chronicle of Higher Education, 5-3-12). "A federal judge in Atlanta has handed down a long-awaited ruling in a lawsuit brought by three scholarly publishers against Georgia State University over its use of copyrighted material in electronic reserves." Mostly the decision favored the university, but "Judge Evans proposed a 10-percent rule to guide decisions about what constitutes fair use in an educational setting. For books without chapters or with fewer than 10 chapters, 'unpaid copying of no more than 10 percent of the pages in the book is permissible under factor three,' she wrote in her ruling. For books with 10 or more chapters, 'permissible fair use' would be copying up to one chapter or its equivalent." An excellent analysis of the outcomes.
• Fair Use Panel Cautions Against Adopting Georgia State Ruling as Definitive (Josh Hadro, Library Journal, 6-26-12). The ruling acknowledges a fair use case for education e-reserves and uploads on course managements systems, but the 10% rule is very "context-sensitive." Entertainment attorney Dean Cheley gives this "exceedingly clear set of criteria for fair use defense" to his clients, mostly including nonfiction filmmakers:
~Are you using the material to illustrate a specific point that you’re trying to make?
~Are you only using so much as is necessary to make that point?
~Is it clear to the audience what that point is?
• Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994) (PDF, Legal Information Institute, Supreme Court opinions and decision. See also: Wikipedia account of this U.S. Supreme Court case (1994) that" established that a commercial parody can qualify as fair use. That money is made does not make it impossible for a use to be fair; it is merely one of the components of a fair use analysis. Wikipedia's summary explains how the four factors were applied.
Contents. In particular, look at Three Years after Campbell v. Acuff-Rose Music,
Inc.: What Is Fair Game for Parodists? (PDF, Kathryn D. Piele, Loyola of Los Angeles Entertainment Law Review, 9-1-97). Piele discusses the implications of the case, including its distinction between parody and satire (parody making fun of the work itself, and satire using the original work as a vehicle to criticize something else, such as society itself, the latter NOT being fair use). It also brings in other cases, including Dr. Suess v. Penguin Books ("discounting the defendants' argument that its book about the O.J. Simpson case parodied the original Dr. Seuss works, and holding that the work broadly mimicked Dr. Seuss's characteristic style to simply retell the Simpson case"). And Sun Trust Bank v. Houghton Mifflin about the book The Wind Done Gone, the court upholding the parody defense, as it specifically criticized the depiction of slavery and relationships between blacks and whites in Gone With the Wind.
• Case Summaries of Fair Use Cases (Copyright Advisory Office Columbia University Libraries). Particularly good on cases related to academia, photocopying research articles for use in a private firm (Texaco), teaching copies for classroom, quoting excerpts in scholarly presentations, posting items on websites for public access, using excerpts from sound recordings in videos, manipulating photo images for multimedia.

Codes of Best Practices and Fair Use Guidelines
See general entries on fair use above this box.

Between 1993 and 1995, Jill Wechsler and I (representing ASJA) [articipated in a Conference on Fair Use, which met all day, once a month, for about three years. Paul Aiken (who as a lawyer was far more knowledgeable than we) was there representing the Authors Guild, to which I also belonged, and we spent all day discussing issues with smart people from many creator, producer, user, and scholarly disciplines. At first 40 groups and later 95 deliberated, in "working groups," on how to establish guidelines for fair use in the new electronic media and other infrastructures. There was much disagreement. Researchers wanted information to be free; authors and publishers wanted to be paid for their products, but also depended on the fair use doctrine. Documentarians, librarians, and researchers wanted selections from movies to be fair use; the motion picture industry felt otherwise; they settled on an acceptable "safe harbor," in which a "fair user" might feel safe from lawsuits. University professors wanted to copy chapters from books to hand out, free, to their students; textbook authors counted on textbooks as sources of retirement income, and publishers had an interest in policing copying abuses. For that matter, the Patent Office (part of the executive branch) hosted the conference, and its director was raising rates for registering patents; the Copyright Office (part of the legislative branch) tries to keep its copyright registration rates low, so individuals can afford to register their creative works. We were told Bruce Lehman (director of the patent office at the time) wanted to merge the Patent and Copyright offices, UNDER Patents, probably, but that merger didn't happen. And Fair Use is really a copyright issue, but heck -- this was a multidisciplinary task force. The discussions about fair use that took place over those three years led us all to explore the nature of U.S. copyright policy from all angles, especially those of varying vested interests of CONFU's participants. Many of the following guidelines probably got their start in that period -- very few guidelines were finalized at that time. Note: guidelines are NOT LAW, and many of these guidelines are considered drafts.

• Beware the copyright trolls. High-tech journalist Tam Harbert on Las Vegas-based Righthaven LLC and other firms who are less interested in preventing copyright infringement ("cease and desist") than in collecting for it ("insist," that is, send us the money).Attention: Righthaven, the "copyright troll." [Note: This firm is now in big trouble.] Read this profile of the Las Vegas firm Righthaven, which is making a business of suing nonprofits and individuals who reprint whole newspaper articles and images on their websites without clearing permission: Righthaven: saving the newspaper industry, one lawsuit at a time (Ars Technica, 9-9-10). The people Righthaven sues, says Ars Technica, are often the sources for the very stories they're suing about. Funded by the Las Vegas Review Journal, Righthaven sues random websites for copyright infringement for posting articles, or snippets of articles on their sites, often with a linkback, writes TechDirt in Righthaven Loses First Lawsuit; Judge Says Copying Was Fair Use. Unfortunately, says TechDirt, the case was not dismissed in another court, where a site was sued for content posted by a user on a user-generated site. Righthaven buys the license to articles wrongly reprinted on several websites, registers their copyright, then sues for damages the owners of websites that post the articles. In one case, a judge dismissed the suit because the posting was probably fair use:Judge tells copyright troll Righthaven no, it's fair use (Nate Anderson, ars technica,10-21-10). Most sites cave in and pay up (typically a few thousand dollars), because their owners can't afford court battles. Righthaven also seeks forfeiture of the website domain of those it sues. Righthaven is exploiting a loophole in copyright law, explains Wired Magazine , suing only sites "that have not registered a Digital Millennium Copyright Act takedown agent. The $105 filing fee more often than not would prevent a lawsuit in the first place." See The $105 Fix That Could Protect You From Copyright-Troll Lawsuits (David Kravets, Wired, 10-27-10). Download this form (PDF) from the Copyright Office and file it!
And then the worm turns: Righthaven's lawyers now targets of State Bar investigation (Ars Technica, 1-13-12).
• Newspaper Chain’s New Business Plan: Copyright Suits (David Kravets, Wired, 7-22-10)
• Digital Millennium Copyright Act, DMCA Takedown Notices, and Related Issues
• Court Declares Newspaper Excerpt on Online Forum is a Non-Infringing Fair Use (Kurt Opsahl, 3-10-12). The judgment – part of the nuisance lawsuit avalanche started by copyright troll Righthaven – found that Democratic Underground did not infringe the copyright in a Las Vegas Review-Journal newspaper article when a user of the online political forum posted a five-sentence excerpt, with a link back to the newspaper's website.
• The $105 Fix That Could Protect You From Copyright-Troll Lawsuits (David Kravets, Wired, 10-27-10). "Under the Digital Millennium Copyright Act, a website enjoys effective immunity from civil copyright liability for user content, provided they promptly remove infringing material at the request of a rightsholder. That’s how sites like YouTube are able to exist, and why Wired.com allows users to post comments to our stories without fear that a single user’s cut-and-paste will cost us $150,000 in court. But to dock in that legal safe harbor, a site has to, among other things, register an official contact point for DMCA takedown notices, a process that involves filling out a form and mailing a check" to the U.S. Copyright Office. Advises Kravets: "If you run a U.S. blog or a community site that accepts user content, you can register a DMCA agent by downloading this form (.pdf) and sending $105 and the form to Copyright RRP, Box 71537, Washington, D.C., 20024."

• The E-Book Piracy Debate, Revisited (David Pogue, Technology, NY Times, 5-9-13). "Even though we don’t know for sure, there’s mounting evidence that e-books are more like music files than DVD movies: removing copy protection doesn’t hurt and might help. And there’s very little evidence that copy protection is stopping piracy. That doesn’t mean the issue is settled either way. The point is, there’s very little evidence. More publishers in more categories should perform more experiments like Tor’s. Let’s quit opining about what will happen, and find out." Another good point: "... Apple and Amazon have had such success with the single click-to-buy button. To avoid piracy, it’s not enough to offer people a good product at a fair price. You also have to make buying as effortless as possible."
• Pirates, Beware: Industry, ISPs Launch Copyright Alert System (Ira Teinowitz, The Wrap, 2-25-13). The entertainment’s industry new piracy warnings to computer users started flowing as the industry and internet service providers finally launched their long-promised Copyright Alert System, an effort by the movie, TV and recording industries and major cable providers to move much more swiftly to issue warnings whenever copyright owners discover that an account is being used to access or download pirated content.
• Sample DMCA Take Down Letter (Gene Quinn, IPWatchdog, Inc., 7-6-09)
• Notice and take down (Wikipedia entry)
• Some Thoughts About Piracy (Mike Shatzkin, Idealogue 11-25-09)
• Book Piracy: A Non-Issue (Paul Carr, TechCrunch 8-23-11). There is piracy (such as companies copying and selling books en masse) and there is nonpiracy (like borrowing books from the library)
• Kindle e-book piracy accelerates David Carnoy, C/​NET 2-18-11). What's the dark side of the success of e-readers and e-books? In a word, piracy.
• Confessions of a Book Pirate (C. Max Magee, The Millions 1-25-10)
• What You Need to Know About SOPA in 2012 (that is, the Stop Online Piracy Act)
• Stop Online Piracy Act, text of the bill before Congress.
• Redditors discuss why they pirate e-books (TeleRead, 7-27-12)
• How Do Music Pirates Get Caught? (Paul Gil, About.com)
• Download Uproar: Record Industry Goes After Personal Use (Marc Fisher, Washington Post, 12-30-07) Industry sues for downloading songs from CDs to personal computers.
• Happy Anniversary Pirates: 20,000 Copyright Lawsuits and Counting (David Kravets, Wired, 8-29-07). The Recording Industry of America learns that suing music fans en masse doesn't work against peer-to-peer (P2P) networks. Kill one Napster and seven Bit Torrents emerge.
• Music Industry to Abandon Mass Suits (Sarah McBride and Ethan Smith, Wall Street Journal, 12-19-08)
• Center for Copyright Information (a collaboration between the Motion Picture Association of America, the Recording Industry Association of America and five of America’s biggest Internet service providers: AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon. The organization hopes to systematize how digital copyright infringement is handled.
• Digital Millennium Copyright Act, DMCA Takedown Notices, and Related Issues
• Coming Soon: A Softer Approach to Online Piracy (Victor Luckerson, Time/​Business, 6-26-12). "Here’s how the new system works: An Internet user downloading media illegally gets flagged by the copyright holder (a record label or movie studio). The copyright holder doesn’t know who you are, but they can detect your IP address if you’re on an open file-sharing network. They tell your Internet service provider that they’ve noticed some questionable activity coming from your address. The ISP will email you a copyright alert, which informs you that your account has been used for illegal file-sharing and directs you to legal avenues to acquire movies or music."

• Be aware of the distinction between rights and copyright. Here's Victoria Strauss's take on the subject, for Writer Beware (7-2-12): Rights vs. Copyright
• RIGHTS 101: What Writers Should Know About All-Rights and Work-Made-For-Hire Contracts (2003 position paper, American Society of Journalists & Authors)
• Copyright Termination: How Authors (and Their Heirs) Can Recapture Their Pre-1978 Copyrights (Lloyd J. Dassin, CopyLaw.com, on a legal provision designed to protect authors of older works from having to “live” with a bad deal they entered into when they had little negotiating skill or leverage)
• Pay the Writer (Harlan Ellison demonstrating on video how to respond to people who ask for rights to use your work for free, in exchange for free publicity)
• 44 Places Where Writers (and Other Creative People) Can Obtain Free or Low-Cost Legal Help (Mark Fowler, Rights of Writers, 12-31-10). Includes this state-by-state directory of Volunteer Lawyers for the Arts.
• Rights vs. Copyright( Victoria Strauss for Writer Beware, 7-2-12). Read that and then this, by the same author: The Importance of Reversion Clauses in Book Contracts (Writer Beware, 4-27-12).
• Addendums, Rights Grabs & Agents (Yet Again) (Kristine Kathryn Rusch, The Business Rusch, 9-25-13). What to do (and understand) when a publisher or agent adds an addendum to a contract. Very few addendums help the writer.
• 5 Tips for Avoiding the Rights Grab (Samuel Lewis, Digital PhotoPro, 8-24-10). Get exposure for your work without losing ownership of it
• Unconscionability Novelist Jason Konrath on "some of the more one-sided, onerous terms in a standard publishing contract." ""Joint accounting, or basketing, is another clause many authors (me included) got saddled with. Books 1, 2, and 3 will be held in a joint and open account, and Publisher shall not pay Author's share of royalties and subsidiary rights income on any Book of the Work until Author's share of royalties and subsidiary rights income for all Books exceeds the total advance.
"In layman's terms, if you have a three-book deal with an advance of $30,000, you don't make a cent in royalties until all $30,000 has earned out."
• The Business Rusch: Royalty Statements (Kristine Kathryn Rusch, 4-13-11) "Right now, e-book rights are a subsidiary right, negligible and relatively unimportant. Between two and five years from now, e-book rights will become the dominant book right. If traditional publishers do not change their accounting methods now, then these accounting methods will end up costing writers hundreds of thousands of dollars per year."
"Some—some, not all—traditional publishing houses are significantly underreporting e-book sales. In some cases these sales are off by a factor of 10 or more."
• The Business Rusch: Royalty Statement Update 2012 (Kristine Kathryn Rusch 5-2-12) Rusch explains how a publisher can finagle the figures with "basket accounting," lumping ebook sales together, not separately accounting for various kinds of ebooks at different rates, and so forth.
• Writers' Rights: Right? Jane Smith, blogging at How Publishing Really Works, reminds writers to master certain principles, including the difference between copyright and publishing rights and the difference between owning a thing and owning the copyright to it. See many useful links at end of article. See also: Copyright Day (Nicola Morgan, Help!I Need a Publisher!)and Let's Learn About Copyright: Get Blogging (Jane Smith)
• WhichDraft.com (the blog), a self-directed legal resource (not legal advice!), for those who can afford to take advantage of this contract assembly website (with multiple version tracking, comparison red lining, and online collaboration tools). I haven't tested it.
• What is the “Authors Alliance?” T.J. Stiles, a member of the Authors Guild, criticizes the AA for its academic leadership and its proposals to reduce copyright protections for authors and restrict remedies for infringement. Here's Pamela Samuelson on the organization's launch (Samuelson is a UC Berkeley law professor and a founder of the Authors Alliance). In Fair Use Has a Posse, Cory Doctorow argues that academic authors want "to make their works more widely available in public policy debates." But what is "fair use" to academic authors (who depend on publication for tenure) may feel like giving away rights to an author who tries to make a living directly from writing.
• Your rights as an independent contractor (About.com on the IRS's Common-Law Rules -- formerly Twenty Common Law Factors)
• Freelancers Fight State’s Independent Contractor Law (Andrea Shea, WBUR, Boston, 6-30-10). A law created to prevent exploitation of workers (among employers who avoid payroll, taxes, and benefits) creates genuine problems for freelancers and independent contractors on Massachusetts.
• A Bill of Rights for Songwriters and Composers (American Society of Composers, Authors and Publishers, or ASCAP)
• Steve Jobs biographer does not have to turn over unpublished material to agency pricing class-action plaintiffs (Chris Meadows, TeleRead, 7-30-12)
• Advocates, Addendums, and Sneaks, oh my by Kristine Kathryn Rusch, author of the Freelancer's Survival Guide, which you can read free online (or purchase as an ebook). Her message in this blog entry: You can't count on publishers to give you a fair contract and you cannot always count on agents to watch out for your interests, Read every line of every contract and educate yourself on what to watch for, or get a good intellectual property lawyer to do it for you.
• The perils of failing to read the fine print (Michelle Demers, Bad Egg blog, on how two clauses in a contract may operate independently -- so read them all, or have a lawyer do so!)
• Keep Your Copyrights (Columbia Law School tries to help creators from giving away rights to intellectual property)
• Freelance Rights blog (initially discussing settlement in the landmark lawsuit over unauthorized reuse of freelance authors' previously published newspaper and magazine articles--and later discussing Google Book Settlement)
• No!Spec (educating the public about speculative (spec) work
• Ghostwriters, Creators, Cheats (the case of the prolific author Alexandre Dumas and Auguste Maquet, the collaborator who helped him write The Three Musketeers and its sequels. WIPO Magazine). See also Book collaboration and ghostwriting (Writers & Editors website)
• E-book rights, developments, conflicts, pricing, and struggles for market. This page on the Writers & Editors site links to stories of prime importance to authors. Book publishers are trying to grab electronic rights from authors whose contracts 20 years ago didn't anticipate such a thing as electronic books--and authors MUST educate themselves about the issues involved, particularly because in the new electronic age it may make more economic sense to self-publish than to be content with the measly sums that will come from print-on-demand books the publisher arranges for, just to hang on to all rights on a book.
• Collaboration agreements (Writers & Editors)
• How publishers view rights. "One of the the first rules I learned when I came into publishing decades ago was 'acquire rights broadly, license rights narrowly,' ” writes Mike Shatzkin in Three words of wisdom: standards, rights, & data. He continues: "That is practice which was unambiguously the wisest commercial course until our current and developing age of digital delivery. Now agents (or publishers) having licensed rights 'narrowly' can cause books not to be available to customers who would be happy to buy them when they easily could be doing so." Another complication of the digital age: "The challenges with rights are, first, having them, and second, making sure a file’s metadata spells them out clearly."
• Authors Rights: A Manual for Journalists (PDF file, European Federation of Journalists)
• FAQs about publishing law (PublishLawyer.com on common legal issues affecting writers, publishers, editors, and the Internet community )
• Position Paper on Yale University Copyright Policy (prepared by university librarian Scott Bennett for the Cooperative Research Committee)
• International PEN's Declaration on the Rights and Responsibilities of Translators
• Pay the Writer (Harlan Ellison, clip from the documentary "Dreams with Sharp Teeth")
• New Kindle Audio Feature Causes a Stir (Geoffrey A. Fowler and Jeffrey A. Trachtenberg). Amazon's new experimental text-reading feature reads text aloud with a computer-generated voice. "They don't have the right to read a book out loud," said Paul Aiken, executive director of the Authors Guild. "That's an audio right, which is derivative under copyright law."
• Kindle Text-to-Speech Issue Is a Lot of Talk (Dan Moren, Macworld 2-11-09, makes an argument to counter the Author Guild's, about whether computer-generated text readers are a threat to authors' audio rights.)
• Rights of Writers • (Mark A. Fowler's helpful blog). Answers such questions as Can I Mention Brand Name Products in My Fiction? Can I Have Don Draper Make a Cameo Appearance in My Novel? and "Any Damn Fool Can Be Accurate -- and Dull": Can I Be Liable to My Readers for Lying About Myself? . Many excellent explanations and answers to common questions.
• Who Owns an Interview? (Mark Fowler, Rights of Writers, 1-7-11).
• Copyright and taped interviews (Reporters Committee for Freedom of the Press)
• Who Owns the Copyright in an Interview? (Bob Tarantina, Entertainment & Media Law Signal, 2-4-11, answers the question for under Canadian law).
• Who Owns Oral History? A Creative Commons Solution (Jack Dougherty and Candace Simpson, On the Line, 8-11-12). Read the comments, too. An important discussion: "When an oral history narrator shares her story in response to questions posed by an interviewer, and the recording and transcript are deposited in an archive, who holds the rights to these historical source materials? Who decides whether or not they may be shared with the public, quoted in a publication, or uploaded to the web? Who decides whether someone has the right to earn money from including an interview in a commercially distributed book, video, or website? Furthermore, does Creative Commons, a licensing tool developed by the open access movement to protect copyright while increasing public distribution, offer a better solution to these questions than existing oral history protocols?"
• Who owns your Twitter post? Judge Rules That Protester Can’t Oppose Twitter Subpoena (Colin Moynihan, City Room, NY Times 4-24-12). Tweeter Harris "lacked the standing to oppose the subpoena because Twitter’s policies required that he agree to grant the company a 'worldwide, non-exclusive royalty-free' right to distribute messages, which are publicly viewable. He labeled “understandable, but without merit” the defendant’s contention that he had a privacy interest in his tweets."PUBLISHERS' RIGHTS GRABS
• Condé Nast query: What makes a rights grab? (Authors Guild, 1-15-13). "Condé Nast’s new boilerplate contract for freelancers, under which it acquires a free 12-month right to option dramatic and multimedia rights to articles appearing in its magazines and then, if it exercises that option, shares less than half the usual amount with the author... Taking dramatization rights breaks with industry practice. The publisher is compensating the freelancer for his or her journalism, not for speculative movie and tv deals."
• Condé Nast Moves to Seize, Lowball Freelancers’ Film/​TV Rights (Authors Guild, 1-14-13). Condé Nast owns such leading publications as Bon Appétit, GQ, The New Yorker, Self, Vanity Fair, Vogue, and Wired, among others. Authors and agents are pushing back.
• Condé Nast Writer Deals Stir Dispute (Christine Haughney, NY Times, 1-13-13). "Condé Nast articles led to the movie “Argo,” which so far has generated $166 million in worldwide box-office sales, “Eat Pray Love,” which made $204 million in global sales and “Brokeback Mountain,” which brought in $178 million. But now, Condé Nast, whose magazines are battling a punishing business environment, wants to capture more of the film and television profits, which previously went to writers who owned the rights to these works. The new contracts have angered writers and their agents who argue that it’s another cut at their already rapidly shrinking compensation."
• Random House Claims Digital Rights to Past Books (Jeffrey Trachtenberg, WSJ 12-12-09) Random House claims that "the exclusive right to publish 'in book form' or 'in any and all editions'" includes digital rights. But Random House lost its 2002 suit to prevent RosettaBooks publish author-licensed e-book editions of works by William Styron, Kurt Vonnegut Jr. and Robert Parker. Agent Nat Sobel says courts have agreed with the position that contracts 20 years ago didn't include electronic rights. This is a big issue.

• Deconstructing Moral Rights (Cyrill P. Rigamonti, International Law Journal, 2006)
• Moral Rights Basics (Betsy Rosenblatt, Harvard Law School, 1998)
• Moral rights in the United States. Wikipedia, subsection of Moral rights (copyright law).
• Moral Rights of Authors in the USA (Ronald Standler, 1998). Basic message: The U.S. doesn't recognize moral rights that are strongly upheld elsewhere. "Some of these problems could be avoided by a carefully drafted contract," writes Standler. "However, in reality, any written contract is likely to be drafted by the stronger party and offered to the weaker party as a Hobson's choice, without the opportunity for bargaining. Such contracts might later be attacked as an "adhesion contract". The essence of the problem in most of the above situations is that all of the power and control is in the hands of the stronger party, who is then in a position to abuse or exploit the weaker party. A written contract is unable to change this imbalance of power, or the consequences that flow from the exploitation of the weaker party."
• A few things you should know about copyright. "The 'Moral Rights' are the right to a by-line or credit, and the right to object to distortion of your work," reads one line in item 8 in this interesting fact sheet from the London freelance branch of the National Union of Journalists (UK). Another sentence of interest: "You do have moral rights in, for example, a book - so long as it contains the magic phrase 'Moral Rights Asserted'."

Until recently, there was a standard "reversion of rights" clause in book contracts, by which rights to the book would revert to the author, six months after the author's request, if the book was no longer in print or sales had dwindled to almost nothing. With POD printing available, publishers are now eager to hang on to those rights, selling one book at a time, POD--with measly returns to writers, who could make more reprinting the book on their own, once sales diminish to a trickle. So read up and DO NOT sign away "all rights in perpetuity"!
• Publishing Reversion Clauses (Dean Wesley Smith on what to ask for in a reversion-of-rights clause--with an excellent overview of why this issue is important. Read the whole thing!)
• Rights Reversion (Kristine Kathryn Rusch, The Business Rusch, 10-24-12) How to get your rights back from a book publisher
• Contracts 101: The Reversion of Rights Clause (Jane Friedman, Scratch Magazine, Hunger issue: Q1 2014) Specify how you'll terminate the relationship with your publisher before saying yes to the publishing deal. "Remember: For any type of contract, if your contract grants copyright to the publisher (or is a 'work for hire' agreement), then the reversion-of-rights clause does not apply, because you’re giving up all rights to the work, forever, without further recourse."
• Reversion of Rights (Rachelle Gardner11-29-10)
• Simon & Schuster Changes The Rules: Goodbye Reversion of Rights! (Kassia Krozser, Booksquare 5-19-07). "Reversion of rights... should be the most important topic on the minds of all authors in this current business environment."
• Reversionary Rights in Book Contracts (Ivan Hoffman)
• The Importance of Reversion Clauses in Book Contracts (Victoria Strauss, Writer Beware, 4-27-12).
• Publisher ignores contract terms, refuses to revert rights to author Doranna Durgin , unless she buys remaining inventory of book (TeleRead, 10-16-11)
• Missouri Rewrites Plot, Rehiring Editor in Chief of the University Press (John Eligon, NY Times, 10-5-12). When 41 authors who had works published by the university press asked for the rights to their works back unless the editor-in-chief, Mr. Clair Willcox, was rehired, the University of Missouri reversed its plans to close the university's publishing house and re-hired the editor.
• In Perpetuity Contracts (Graphic Artists Guild, 2007). "The Authors Guild and the Graphic Artists Guild urge you NOT TO SIGN all rights in perpetuity contracts."
DO YOU KNOW ABOUT YOUR TERMINATION RIGHTS? If not, keep reading.

• Terminating Transfers: A Second Bite of the Apple A Guide to Terminating Transfers under Section 203 of the Copyright Act by Margo E. Crespin (Authors Guild). PDF of article available.
• Publishers brace for authors to reclaim book rights in 2013 (Jeff John Roberts, paidContent, 11-27-12). A copyright law that lets authors break contracts after 35 years will start taking effect in January. The law, which is meant to give authors like Stephen King and Judy Blume a “second bite at the apple,” could provide yet another disruption for traditional publishers.
• Your Copyright Termination Right Explained in Plain English: A Passing Opportunity to Recapture Publishing Rights ( Lloyd J. Jassin, 2010)
• Navigating US Copyright Termination Rights (Brian D. Caplan, for WIPO)
• Avoiding the Copyright War of 2013 (Caz McChrystal, Music Business Journal, July 2009 Music Law) "Section 203 of the Copyright Act allows an author to terminate an exclusive or nonexclusive transfer of a copyright executed on or after January 1, 1978; however, this termination right does not apply to works made for hire. Therefore, transfers of sound recordings by artists to their record labels are subject to the termination right only if those recordings were not made for hire."
• Legislator Calls for Clarifying Copyright Law (Larry Rohter, NY Times, 8-28-11). "When copyright law was revised in 1976, recording artists and songwriters were granted 'termination rights,' which enable them to regain control of their work after 35 years. But with musicians and songwriters now moving to assert that control, the provision threatens to leave the four major record companies, which have made billions of dollars from such recordings and songs, out in the cold. As a result the major record labels — Universal, Sony, EMI and Warner — are now fighting the efforts of recording artists and songwriters to invoke those rights."
• Record Industry Braces for Artists’ Battles Over Song Rights (Larry Rohter, NY Times, 8-15-11). "When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted 'termination rights,' which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance....With the recording industry already reeling from plummeting sales, termination rights claims could be another serious financial blow." The recording industry claims the records are "works for hire" -- the musicians, their employees.
• Dear Musicians: The RIAA Is About To Totally Screw You Over (Again!) (TechDirt). "Copyright law includes a 'termination right,' which cannot be contractually given up, which allows the original content creator to 'reclaim' the copyright on their works 35 years after it was created. The only real exception is in cases where the work qualifies as 'work for hire.'" The musicians expect a showdown with the recording industry.
• Termination of Transfers Provision Applies to All Authors, Not Just Musicians (Tonya Gisselberg, Seattle Copyright Watch, 9-8-11). "That “little-noted” provision is 17 U.S.C. §203, Termination of transfers and licenses granted by the author. For grants made on or after January 1, 1978, §203 allows an author, or her surviving family or estate if the author is dead, to terminate a copyright grant after 35 years from the date the grant was made, if a certain procedure is followed."
• Marybeth Peters (Tonya Gisselberg, Seattle Copyright Watch, 9-24-11). The former U.S. Register of Copyrights spoke about recording artists’ public performance rights in the non-digital broadcasts of their sound recordings, among other things.

First-sale doctrine in a world of re-selling, rentals, and licensing
I bought the physical book or CD -- what rights does that give me?
• First-sale doctrine (Wikipedia entry).
• The first-sale doctrine limits the distribution rights of copyright and trademark owners by allowing the purchaser of a copyrighted product to re-sell the physical product or phonorecord (e.g., recorded music). The right does not apply to unlawfully made audio or video tapes.
• Reselling Digital Goods Is Copyright Infringement, Judge Rules (David Kravets, Wired, 4-1-13) "A federal judge is declaring as unlawful a one-of-a-kind website enabling the online sale of pre-owned digital music files....The case weighed the so-called first-sale doctrine, the legal theory that people in lawful possession of copyright material have the right to resell it. U.S. District Judge Richard Sullivan, ruling in a suit brought by Vivendi’s Capitol Records, said the doctrine did not apply to digital goods."
• Huge Supreme Court decision: Kirtsaeng v. John Wiley & SonsJustices Permit Resale of Copyrighted Imports (Adam Liptak, NY Times, 3-19-13) The Supreme Court issued a truly major decision about international re-selling of books. See also Grimmelmann: Issues in Kirtsaeng 'Significant' (James Grimmelmann, PW, 3-20-13. an excellent explanation of issues). "Since the textbooks Kirtsaeng was importing were printed with the permission of the copyright holders, they were legal, and so were his imports." (Pirated books and music are not legal.) ... "However one comes out on first sale and imported textbooks, the issue, in books and beyond, is too significant to end here. Register of Copyrights Maria Pallante is already proposing significant reforms to the Copyright Act." (See The Next Great Copyright Act.).
Meanwhile, here's another take on the Kirtsaeng decision: "Supreme Court to Wiley publishers: your insane theory of copyright is wrong" (Cory Doctorow, BoingBoing, 3-19-13) "The US Supreme Court has handed down a verdict in Kirtsaeng v. John Wiley & Sons, one of the most important copyright cases of the century. In it, the publisher John Wiley & Sons sought to block the import of legally purchased cheap overseas editions of its books by arguing that "first sale" (the right to resell copyrighted works) only applies to goods made in the USA. However you feel about cheap overseas editions and their importation into the USA, this was a disastrous legal theory. Practically everything owned by Americans is made outside of the USA and almost all of it embodies some kind of copyright. Under Wiley's theory, you would have no first-sale rights to any of that stuff -- you couldn't sell it, you couldn't even give it away. What's more, the other "exceptions and limitations" to copyright would also not apply, meaning that it would be illegal to photograph anything made outside of the USA (no di minimum exemption) or to transform it in any way (no fair use, either). Thanks goodness the Supremes got this one right!" Here is the decision (KIRTSAENG, DBA BLUECHRISTINE99 v. JOHN WILEY & SONS, INC. , decided 3-19-13).
Earlier, PW had reported in in As Wiley Case Heads to the Supreme Court, Libraries Join “Owners Rights” Coalition (Andrew Albanese, PW, 10-24-12), "Next week’s Supreme Court case will address the fallout from an August, 2011 ruling in John Wiley & Sons, Inc. v. Supap Kirtsaeng in which Kirtsaeng, a Thai-born U.S. student was successfully sued by Wiley for importing and reselling in the U.S. foreign editions of Wiley textbooks made for exclusive sale abroad. In its verdict, a three-judge panel of the Second Circuit affirmed, by a 2-1 margin, that Kirtsaeng could not avail himself of the first sale doctrine because the law says that products must be 'lawfully made.'" The Second Circuit ruled that "foreign-made works" were not "lawfully made." PW: "That decision has raised alarms for a number of businesses, including libraries and the used book trade, and online sellers like Amazon, and eBay."
• Why Ownership Rights Matter (background, from Owners' Rights Initiative)''
• Supreme Court Holds that the “First Sale” Doctrine Protects Importation and Sale of Books and Recordings Lawfully Manufactured and Acquired Abroad (Bingham, 3-26-13). "The expanded resale market permitted under Kirtsaeng has the potential to lead to increased piracy of intellectual property. This is because it may not always be clear to resellers and consumers in the United States whether they are purchasing a lawfully made work manufactured for sale in a foreign market or an unauthorized pirated copy. The “first sale” doctrine does not apply pirated copies, and nothing in the Court’s opinion in Kirtsaeng changes the restrictions on selling such unauthorized works."
• See the Betamax case, Authors Guild vs. Hathi Trust under Fair Use (scroll to cases at end of Fair Use section.
• Vernor v. Autodesk: Software and the First Sale Doctrine under Copyright Law (Marcelo Halpern, Yury Kapgan, and Kathy Yu) (Intellectual Property & Technology Law Journal, Vol.23, No. 3, March 2011). The Ninth Circuit ruled recently that "an individual who purchased and then resold secondhand software was not the 'owner' of that copy of the software and therefore could not resell it when the license agreement accompanying the software restricted such resale."

• Important Fair Use Cases (see in particular those related to the Hathi Trust
• The Shrinking Orphan Works Problem (Joseph Esposito, The Scholarly Kitchen, 10-18-11).
• Orphan Works (Wikipedia entry: "An orphan work is a copyrighted work for which the copyright owner cannot be contacted. In some cases the name of the creator or copyright owner of an orphan work may be known but other than the name no information can be established. Reasons for a work to be orphan include that the copyright owner is unaware of their ownership or that the copyright owner has died or gone out of business (if a company) and it is not possible to establish to whom ownership of the copyright has passed." Good links to sources.
• Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary (3-13-08)
• The Importance of Orphan Works Legislation (Marybeth Peters, Register of Copyrights, U.S. Copyright Office, 9-25-08). This "legislation would allow good-faith users of copyrighted content to move forward in cases where they wish to license a use but cannot locate the copyright owner after a diligent search."
• Shawn Bentley Orphan Works Act of 2008 This bill to provide a limitation on judicial remedies in copyright infringement cases involving orphan works passed the Senate, died in Congress, 2008. Status shown here at Govtrack.us (a civic project to track Congress)
• What Orphan Works Could Mean to Bloggers (Jonathan Bailey, The Blog Herald, 4-28-08) What you can do to protect your work.
• Corporate Theft (Brad Holland of the Illustrator's Partnership talking about how the Orphan Works bill affects every artist and photographer, on YouTube)
• Orphan Works Resource Page for Artists (Illustrators' Partnership)
See also entries for the Google Book Settlement, which is very much associated with the issue of orphan works.
• Little Orphan Artworks (Lawrence Lessig, NY Times, 5-20-08). "CONGRESS is considering a major reform of copyright law intended to solve the problem of 'orphan works' — those works whose owner cannot be found. This 'reform' would be an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public. "

• Oral History Consent Form (for interviewees, Jack Dougherty, form used for More Than One Struggle oral history project
• FOB (firms out of business) (www.fob-file.com)...a database of publishing, literary and other firms out of business -- that is, printing and publishing firms, magazines, literary agencies and similar organizations that no longer exist -- and, where possible. which successor organizations might own any surviving rights. More About FOB, which is run jointly by the Harry Ransom Center (University of Texas, Austin) and University of Reading Library. The Harry Random Center also runs WATCH (Writers Artists and Their Copyright Holders), which a colleague tells me is a great idea but sadly out of date. The Authors Guild has tried to establish a similar database; I am not sure how good it is.

CLEARING RIGHTS FOR MUSIC AND SOUND
Clearing rights for music is not for sissies. There are probably separate copyrights for the music and lyrics, not to mention synchronization rights (to embed copyrighted music in an audio-visual production), public performance licenses, and so on. (Keeping it simplest, you might want to produce your own music from sheet music; once a piece of music is recorded or performed, clearing permissions gets more complicated). Try searching the ASCAP (the American Society of Composers, Authors and Publishers) and BMI song title databases by song, title, songwriter, or publisher for information on songs and songwriters registered with these performing rights societies (liner notes on music may tell you to which society a writer belongs). If you don't find a songwriter registered with ASCAP, check with BMI or SESAC (both owned by the music industry). Songs that are not represented by ASCAP may be represented by the National Music Publishers Association . BMI and SESAC handle some rights, and the Harry Fox Agency (the chief music licensing agency, especially for recording rights) collects royalties from recording rights for most publishers. These organizations may be helpful in different ways:

• Code of Best Practices in Fair Use for Online Video (Center for Social Media)
• The difference between ASCAP and BMI (Todd Brabec of ASCAP's excellent response on how they pay, how they split income up -- scroll down for more info about the life cycle of a song (mechanical royalties, remixes, samples, mash-ups, TV and film licensing, etc.)
• Can I Use Song Lyrics in my Manuscript? (Brian A. Klems, Writers Digest, 5-13-08)
• Blake Morrison on the cost of quoting lyrics (Blake Morrison, The Guardian, 4-30-10). 'I still have the invoices. For quoting one line of "Jumpin' Jack Flash": Ł500. For one line of "Wonderwall": Ł535'
• So You Want to Use Song Lyrics in Your Novel? 5 Steps to Getting Rights to Lyrics (Anne R. Allen's blog entry presents Michael Murphy's "Five Steps to Obtain Song Lyric Rights." Using music lyrics was natural for his back-to-Woodstock novel, Goodbye Emily. Murphy "found that some lyrics aren’t as expensive as the ones Blake Morrison [previous entry] mentioned, and it isn't that hard to get permission. Lyricists are our fellow writers and they deserve to get paid too. (And don’t forget you need permission to use recorded music in your book trailer—even if the music is in the public domain—because musicians deserve to be paid as well.)"
• A Guide to Oral History and the Law by John A. Neuenschwander (Oxford Oral History, with chapters on legal release agreements, subpoenas and FOIA requests, defamation, privacy issues, copyright, oral history on the Internet, institutional review boards (IRB), and duty to report a crime, with sample legal release forms, oral history evaluation guidelines (Oral History Association), and more.
• Who Owns Oral History? A Creative Commons Solution Jack Dougherty and Candace Simpson,, On the Line, 8-11-12).
• Frequently asked questions about music copyright (PD Info). See also Music, Copyright, and the Public Domain.
• Types of Copyright (BMI on public performing right, public performance license, reproduction right, mechanical license, synchronization license, digital performance right in sound recordings
• Artists House Music, The Life of a Song. Watch video from this fascinating panel discussion held at a 2008 meeting of the American Bar Association’s Sports & Entertainment Law Forum, the panelists discuss how compositions generate fees and mechanical royalties from merchandising uses. Examples cited are lyrics printed on clothing as well as compositions and master recordings licensed for singing toys and a musical toothbrush. Scroll down right for more specific bits.
• Rosanne Cash Testifies Before Congress In Defense Of Artists’ Rights (American Songwriter, 6-24-14) "There is a gap in copyright protection for sound recordings created before 1972 which allows digital streaming services to refuse to pay older artists even for digital performances of those sound recordings. Works recorded prior to 1972 are protected by state laws so they don’t enjoy the digital sound recording performance royalty provisions of the federal copyright act."
• More Calls to Fix Music Royalty Rules, but No Accord (Ben Sisario, NY Times, 6-25-14) "The most vigorously debated topic was AM/​FM radio stations’ longstanding exemption under United States law from paying royalties to performers and record companies. These stations pay songwriters, but, unlike stations in almost every other country, do not pay for the recordings they play. This has long angered record companies, but the law has become especially contested in the age of Internet and satellite radio, which pay both kinds of royalties."
• Rosanne Cash: Streaming is “dressed-up piracy” (Kurt Hanson's Radio&Internet News, 10-2-14) “If you download and pay, it’s the same as buying a record. If you stream, it’s just dressed-up piracy.”
• Frequently asked questions about music (CSUSA.org). For example, Can I legally make CDs or tapes of recordings for others so long as I don't charge or otherwise make a profit? Do I need a license if I want to record and distribute a CD of myself singing a popular tune? Do you need a license to play music over the radio? Do I need permission to upload music to my web site? How much does it cost to get a mechanical license? a synch license?
• USA Copyright Law for Sound Recordings (PD Info on public domain and royalty-free music). "The Copyright Act of 1976 created a copyright category called Sound Recordings that now provides federal copyright protection for CD's, MP3's, WAV files, records, and other music recordings made after February 15, 1972." and this: "...pre-1972 sound recordings have no federal copyright protection, but they are still well protected under state law. Virtually every sound recording in the USA is copyright protected at least until the year 2067." That's what it says, on a site geared to public domain and royalty-free music. The music itself may be public domain, but the sound recording of it (say, "Mary Had a Little Lamb") may be copyright protected under state law.
• Mechanical license and compulsory mechanical license, explained (Wikipedia entry)
• License Songs for Your YouTube Videos at $1.99 Each (Samuel Axon, Mashable, 6-28-10)
• Copyright Office notice of compulsory licenses (you can see who's getting mechanical licenses for what song, for a two-year period)
• Who Owns the Rights to a Song? (wiseGeek)
***• How Performing Rights Organizations Pay Royalties to Artists (and how to make sure you’re getting paid) (Christiane Cargill Kinney, guest blog on The DIY Musician, 11-8-12). Understanding How Independent Artists Can Get The Most Out of Their Royalty Payments. Writes Kinney, "Performing Rights Organizations, also known as “PROs,” pay revenues to writers and publishers for public performances of their music, primarily through radio, television, and live performances. In the United States, the PROs are ASCAP, BMI, or SESAC. Each of these organizations negotiate and collect license fees from various entities that publicly perform music, and then they distribute royalty payments to their members. Understanding how the PROs calculate and pay revenues to their members is important to consider when deciding which PRO to join. Each of the PROs have detailed explanations of how they pay royalties to their artists, including foreign royalty payments and payments for internet public performances beyond the scope of this article, which you can read in full at the following links:
ASCAP payment system – http:/​/​www.ascap.com/​members/​payment.aspx
BMI (How We Pay Royalties)– http:/​/​www.bmi.com/​creators/​royalty/​how_we_pay_royalties/​basic
SESAC (Everything You Need To Know About Getting Paid)– http:/​/​sesac.com/​WritersPublishers/​HowWePay/​PaymentInfo.aspx
• Using copyrighted material in your video YouTube's webpage about clearing permissions, fair use and fair dealing, etc. As for "derivative works," or remixes, it advises: "The phrase 'derivative works' refers to creations such as remixes, where you might take images or sound from a recording and edit it into something new. Although the new video is your own creation, the images and sound you've used still belong to someone else. It doesn't matter if you recorded it for free from television, purchased a DVD, purchased a video game, or recorded it yourself at an event—you may still need permission from the copyright holder(s) of the material you drew upon to make your new creation." See video Remix Culture: Fair Use Is Your Friend

• Lawsuit Seeking Greater Digital Royalties for Eminem’s Music Is Settled (Ben Sesario, NY Times, 10-30-12). Should royalties for downloads be treated the same as CDs or as licensed music, which pays substantially higher royalties? An important lawsuit on an important issue.
• Fight Builds Over Online Royalties (Ben Sisario, Media & Advertising, NY Times, 11-4-12). A fight about the way digital royalty rates are set "pits the survival of Pandora Media and other Internet radio services against the diminished paychecks of musicians in the digital age....with streaming music starting to account for a significant chunk of the music industry’s revenue, and Pandora now a scrutinized public company, the issue has touched a nerve as never before. " See Copyright Royalty Board .

When you are taping an interview or performance, or taking photos, or otherwise recording images for later use in a publication or production, be sure to read up first on which releases it makes sense to get in advance -- as you are conducting the interview or taking the picture, etc. I've provided links to some sample release forms below, but this is just to give you a sense of what is needed. You may want to consult a lawyer or at the very least a good professional organization or reference. (If I were doing photos, for example, I would consider joining ASMP, which does good rights education.) Among rights you do not want to violate: rights of privacy (using a nonpublic person's private information or images) or rights of publicity (using a person's image, voice, likeness, or name in a commercial endeavor); in some cases, rights of trademark; and of course claims of libel or slander (depending on what you record or photograph them doing), as well as claims of misuse of content. See
• What Photographers Need to Know About Model Releases (Mindy Charski, Photo District News, 3-22-14) Excellent explanations, and, in passing, the practical realities of balancing various rights: First Amendment, publicity, promotion, privacy, etc. What exactly is "commercial use"? "A lot of times releases are used to make frictionless transactions."
• Property and Model Releases (American Society of Media Photographers)

BEFORE THE DECISION:
The FCC has proposed new rules that could have change the Internet we know and love by allowing broadband providers to create “fast” and “slow” lanes for Internet traffic. This could put small and independent service providers at a disadvantage. Support net neutrality by asking your congressperson to oppose the FCC’s proposal.
• Net Neutrality (Common Craft's explainer video)
• John Oliver on net neutrality: Call it 'preventing cable company f***ery'. (Daily Kos, 6-2-14). "The cable companies have figured out the great truth of America: If you want to do something evil, put it inside something boring." "What's being proposed is so egregious, activists and corporations have been forced onto the same side."
• Sign Petition to the FCC: The internet is a public utility (Daily Kos campaign)
• Google's Growing Silence on Saving Open Internet Leaves Fight to Startups (Todd Shields, Bloomberg, 7-8-14) Or as Rand Fishkin tweeted: " Google & Facebook, after climbing a ladder based on net neutrality, are pulling that ladder up after themselves."
• ALA Files Comments Supporting Net Neutrality (Dianna Dilworth, Media Bistro 7-22-14). American Library Association: “We are extremely concerned that broadband Internet access providers currently have the opportunity and financial incentive to degrade Internet service or discriminate against certain content, services and applications.”
• Net Neutrality: What You Need to Know Now (Save the Internet). "On May 15, 2014, the Federal Communications Commission proposed rules that would allow rampant discrimination online....Under these rules, telecom giants like AT&T, Comcast and Verizon would be able to create a two-tiered Internet, with fast lanes for those who can afford it and dirt roads for the rest of us. These companies would have the power to pick winners and losers online and discriminate against online content and applications. And no one would be able to do anything about it. The agency can preserve Net Neutrality only by designating broadband as a telecommunications service under the law. Anything else is an attack on our rights to connect and communicate."
• Keep the Internet Free and Open! (Common Cause, holding power accountable). "Fact sheet on net neutrality. Network neutrality is the principle that Internet users should be able to access any web content they choose and use any applications they choose, without restrictions or limitations imposed by their Internet service provider. "
• The Coming Tug of War Over the Internet (Christopher Stern, Washington Post, 1-22-06)
• Free American broadband! (S. Derek Turner, Salon, 10-18-05). "In France, you can get super-fast DSL, unlimited phone service and 100 TV channels for a mere $38 a month. Why does the same thing cost so much more in the U.S.? "
• Hear Us Now! (blog about stopping the Comcast megamerger)
• Internet Freeloaders (Adam L. Penenberg, Slate, 1-17-06). Should Google have to pay for the bandwidth it consumes?
• Cable companies sponsoring anti-net neutrality campaign for FCC

Google Book Settlement

Links to settlement info and discussions in re Literary Works i Electronic Databases Copyright Litigation
•
$18 Million Settlement of Freelance Suit Against Electronic Databases Granted Final Approval (Authors Guild 6-12-14)
• Copyright Class Action Settlement Website
• Updates from Freelance Rights (updates by Irv Muchnick, lead respondent in the landmark U.S. Supreme Court case for writers' rights, Reed Elsevier v. Muchnick (see PW story, The Objector (4-5-10). And I quote: "Since 2005, Muchnick has been the lead objector to a proposed settlement stemming from the central rights dispute of the digital age—Tasini v. New York Times—the landmark case in which members of the National Writers’ Union sued the newspaper and some electronic aggregators for, well, piracy. For those who think the other major digital rights case of today—the Google settlement—is close to resolution, consider this: Muchnick joined the Tasini case in 1994. In 1997, as a district court judge, Sonia Sotomayor ruled in favor of the defendants. In 1999, an Appeals Court reversed Sotomayor. In 2001, the Supreme Court affirmed that reversal. Four years later, in 2005, a settlement was announced. It was quickly approved, but Muchnick, and a handful of other objectors, including Anita Bartholomew, represented by Charles Chalmers, appealed."

• Writers Groups Want Publisher-Google Terms Made Public (Jim Milliot, PW, 10-10-12). ASJA, NWU, and SFFWA have "asked the Department of Justice to review last week’s settlement between the AAP and Google that ended the publishers’ seven-year copyright fight with the giant company....A major issue for the organizations is the fate of books published before publishing contracts contained language about the ownership of e-book rights, with the writers contending that in contracts where the rights are not spelled out, e-book rights remain with the author. According to the writers, when publishers agree to give Google access to backlist books, it’s likely that the publisher is taking money for rights owned by authors, not publishers."

• AAP and Google: Please Take It Outside (Peter Brantley, PW, 10-10-12). "I applaud the publisher agreement with Google, as it moves the ball forward on making more literature available through search and discovery, as well as opening up a larger marketplace for backlist titles...But I agree with the authors groups on this: the key points of the AAP agreement need to be made public....Best for the parties to take the key points of this agreement outside, into the sunshine, for all to see. "

• Google Deal Gives Publishers a Choice: Digitize or Not (Claire Cain Miller, NY Times, 10-4-12). "After seven years of litigation, Google and book publishers said on Thursday that they had reached a settlement to allow publishers to choose whether Google digitizes their books and journals. ... "The publishers' private settlement, whatever its terms, does not resolve the authors' copyright infringement claims against Google," Paul Aiken, executive director of the Authors Guild, said in a statement. "Google continues to profit from its use of millions of copyright-protected books without regard to authors' rights, and our class-action lawsuit on behalf of U.S. authors continues."
• Publishers Settle Long-Running Lawsuit Over Google's Book-Scanning Project (Jennifer Howard, Chronicle of Higher Education, 10-4-12) Under the settlement, American publishers can now opt to remove their copyrighted books and journals from Google's library project or choose to make them available for use and sale.
• Closing the Book (Steve Kolowich, Inside Higher Education, 10-5-12). According to Tom Turvey, director of strategic partnerships for Google’s search services division, the basic thrust of the accord is this: All the books with PUBLISHER-OWNED copyrights that Google initially scanned into its database from university libraries will now be either removed from the company’s database or made more easily available through the Google Books interface, which lets visitors read 20 percent of each book for free. [all caps added for emphasis]
• Google strikes deal with publishers over universal library (Julianne Pepitone, CNN MoneyTech, 10-4-12)
• Judge Denny Chinďż˝s 48-page decision on the proposed settlement of the Google litigation, released March 22, 2011
• Dreaming of a Virtual Library: Authors Guild v. Google (Scott Turow, Authors Guild, in letter to the editor, New York Times 4-6-11). (The day of decision: Scott Turow (Authors Guild) on Google Ruling
• Judge Rejects Google Books Settlement (Amir Efrati, WSJ, 3-22-11)
• TeleRead's summary of the bases for Judge Chin's decision (Paul Biba, TeleRead 3-22-11)
• Judge rejects Google's attempt to create a universal library (Laurie Segall, CNN Money 3-22-2011).
"Google's settlement agreement is a complex, 166-page document. While the company took pains to protect the rights of copyright holders -- only tiny snippets are revealed from in-print books -- it put the burden on authors and publishers to police their works' inclusion in the archive. Google will remove books on request, but without an explicit request, it will otherwise digitize anything it can get hold of."
"That didn't sit well with Judge Chin. He also expressed concern over the agreement's handling of 'orphaned' books -- works that are still under copyright, but no longer in print.
"'The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties,' Chin wrote in his ruling."

• Google Books: Headed for the Bonfire? (Erik Sherman, BNET Wired In blog, 3-23-11, which links to his earlier posts). Sherman writes: "The two sides negotiated a highly controversial settlement that drew extensive criticism from the Department of Justice, including the following:
* "Class action suits generally address past actions. This one allowed Google to display copyrighted works in the future for anyone who did not opt out of the agreement.
* "It seemed questionable that any representative could adequately represent all rights owners, especially those who were unreachable but who owned rights to books that were under copyright protection but out of print.
* "Google needed active permission to use the in-print works but not out-of-print. Rights owners that did not claim money within five years would forfeit their money to those already registered. So the deal was stacked in the favor of those with rights to books currently in print, even though Google wanted to scan and display the out-of-print books."
• Google's Book Deal (Times editorial, 3-30-11)
• Google Book Search Settlement Agreement

-- More to come
___________________________________

There are HUGE issues involved in this book settlement (see especially Mary Beth Peters on the dangers of changing copyright law about orphan works through litigation rather than legislation). This kind of issue may give you a headache, but you should read up on it if you have ever written and published a book. Deadline for filling out the Google Book Settlement Claim form (which is not user-friendly) has been extended. The court overseeing Authors Guild v. Google extended the time for authors and publishers to opt out of the settlement by four months, to September 4th (Judge Chin's order). The fairness hearing will be on October 7th. Check out Kristine Smith's instructions for filling out the form (link below). See also links to stories about Orphan Works legislation.

The Authors Guild and the Association of American Publishers support the agreement. Among those who oppose it are Mary Beth Peters, U.S. Register of Copyrights, calls the settlement "a compulsory license for the benefit of one company," and believes it's the wrong way to go about handling the "orphan works" issue. Orphan works are copyrighted works for whom the rights-holders cannot be identified or located -- the very rights-holders who are also unlikely to come forward and opt out of the settlement. As Brewster Kahle writes, summing up objections of others: "Google would get an explicit, perpetual license to scan and sell access to these in-copyright but out-of-print orphans, which make up an estimated 50 to 70 percent of books published after 1923. No other provider of digital books would enjoy the same legal protection.... We need to focus on legislation to address works that are caught in copyright limbo. And we need to stop monopolies from forming so that we can create vibrant publishing environments."

"In the short run," concludes intellectual property expert Pamela Samuelson, "the Google Book Search settlement will unquestionably bring about greater access to books collected by major research libraries over the years. But it is very worrisome that this agreement, which was negotiated in secret by Google and a few lawyers working for the Authors Guild and AAP (who will, by the way, get up to $45.5 million in fees for their work on the settlementďż˝more than all of the authors combined!), will create two complementary monopolies with exclusive rights over a research corpus of this magnitude. Monopolies are prone to engage in many abuses.

"The Book Search agreement is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a major restructuring of the book industryďż˝s future without meaningful government oversight. The market for digitized orphan books could be competitive, but will not be if this settlement is approved as is."
~ conclusion from Legally Speaking: The Dead Souls of the Google Booksearch Settlement by Pamela Samuelson (O'Reilly Radar, 4-17-09)

The SFWA statement (see below) provides another clear outline of objections to the settlement. Those who object may want to sign Ursula LeGuin's Petition Letter to the Judge of the Google Book Settlement (to be sent to Judge Chin by January 28th, 2010, attached as an exhibit to the brief to be submitted to the court by the NWU, ASJA, and SFWA, who oppose the settlement).

One member of ASJA, encouraged to sign LeGuin's petition, responded: "I can't sign the petition because I do not agree. I feel the agreement is useful and worthwhile. It verifies that Google's preemptive scanning was wrong and prevents others from going about it the same way. It sets up a best practices standard and mechanism for the transition from print to digital publishing. I respect the people who oppose the settlement and I know they have put much thought and concern into the matter. But I have not found their arguments convincing."

Here is the Justice Department's Feb. 4, 2010, statement: Despite Substantial Progress Made, Issues Remain. And here's the New York Times on the Justice Department's statement(Miguel Helft, 2-10-10): "In a 31-page filing that could influence a federal judgeďż˝s ruling on the settlement, the department said the new agreement was much improved from an earlier version. But it said the changes were not enough to placate concerns that the deal would grant Google a monopoly over millions of orphan works, meaning books whose right holders are unknown or cannot be found.
"The department also indicated that the revised agreement, like its predecessor, appeared to run afoul of authors' copyrights and was too broad in scope.
"The revised agreement 'suffers from the same core problem as the original agreement: it is an attempt to use the class-action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation,' the department wrote."
Here's the Authors Guild response:( To RIAA or Not to RIAA, That was the Question), explaining why they didn't press litigation through to the end. AG cites the Pyrrhic court victories of the Recording Industry Association of America and the collapse of the music industry. "The ace in the hole for musicians is that they're not as dependent on copyright as book authors are. Music is a performing art: people buy tickets to see musicians. Writing is decidedly not a performing art. Nearly all authors give away their performances, through book tours and readings, and are glad for any audience they can find. For most authors, markets created by copyright are all we've got.Protecting authors' interests has always been our top priority: in this case a timely harnessing of Google was the best way to do it."

The following links are to explanations, arguments, etc., that have been available for some time:

• Authors Guild Memo to Agents and Authors: William Morris's Google Memo Off Target. AG corrects both Morris memo and various myths circulating about the settlement. AG says that by staying in the settlement you aren't limited to the (quite favorable) royalty rate we've negotiated; you have the right to veto your publisher's decision to make your in-print book available in any way through the settlement; you have the right to block all displays of your out-of-print books, even if rights haven't reverted to you, even if your publisher wants to display the books; you have the right to have your work in Google's searchable database and display only snippets to users, blocking all other uses by Google; you have the right to change your mind (allow books you'd previously blocked to be displayed; block books you'd previously allowed to be displayed) at any time. Do read this one.

• 5 Ways the Google Book Settlement Will Change the Future of Reading. (Annalee Newitz, io9 Publishing, 4-2-10). An interesting summary from Gawker's science fiction/​futurist blog about the implications of the settlement,only one highlight from which is quoted here:
"The Google Book Settlement could easily be the twenty-first century's most important shift in how we deal with copyright in the world of publishing. To understand it, you need a little back story on the previous giant shift in copyright law, which happened about twelve years ago.
* "Mickey Mouse Protection Act. In 1998, copyright was turned on its head by a piece of legislation often called the "Mickey Mouse Protection Act.Known to policy-makers as the Copyright Extension Act, it was the result of intensive lobbying by the entertainment industry, led in part by Disney, to extend the copyright on any work created after 1923. Many of Disney's classic pieces of content, like Mickey Mouse cartoons, were about to pass into the public domain. So the company was naturally interested in keeping control of the Mouse as long as it could....The Act also gave birth to a loosely organized but powerful movement of copyright reformists....Over the past decade, many of these reformists migrated to jobs in Silicon Valley, where easily-copied digital media are constantly forcing the question of what copyright really means in the information age.
One might say that the Google Book Settlement (GBS) is the result of this migration." Read on here.

• Google's Book Search: A Disaster for Scholars (Geoffrey Nunberg, Chronicle of Higher Education, 3-31-09). Nunberg writes:
"...50 or 100 years from now control of the collection may pass from Google to somebody elseďż˝Elsevier, Unesco, Wal-Mart. But it's safe to assume that the digitized books that scholars will be working with then will be the very same ones that are sitting on Google's servers today, augmented by the millions of titles published in the interim.
"That realization lends a particular urgency to the concerns that people have voiced about the settlement -- about pricing, access, and privacy, among other things. But for scholars, it raises another, equally basic question: What assurances do we have that Google will do this right?
"Doing it right depends on what exactly 'it' is. Google has been something of a shape-shifter in describing the project. The company likes to refer to Google's book search as a 'library,' but it generally talks about books as just another kind of information resource to be incorporated into Greater Google."
and later:
"...to pose those [research] questions, you need reliable metadata about dates and categories, which is why it's so disappointing that the book search's metadata are a train wreck: a mishmash wrapped in a muddle wrapped in a mess."Read the whole Chronicle story here.

• Google Slammed by Photographers' Class Action (Erik Sherman, B-Net, 4-7-10). The American Society of Media Photographers -- with the Graphic Artists Guild, Picture Archive Counsel of America, North American Nature Photography Association, and Professional Photographers of America -- filed a class-action copyright infringement suit, alleging that Google failed to obtain permission to scan and display books from people who owned rights to photographs and illustrations that appear in the titles.

• How to understand the objections just filed in the Google settlement (Anita Bartholomew, Ask the Editor, who writes:
"itďż˝s as if Search Engine X infringed my copyright but not yours. But in settling the case, I made a deal with Search Engine X that it could have your future rights along with mine, in exchange for something else I wanted. Do you think it would be fair for you to be forced into such a deal? I donďż˝t either. And, aside from a dozen other arguments that could be made, I hope that Judge Chin recognizes the inherent injustice of such a deal and stops it right there.")

• Lawyer and Author Adds His Objections to Settling the Google Book Lawsuit (Miguel Helft and Motoko Rich, NY Times, 8-18-09: Scott E. Gant "argues that the agreement, which gives Google commercial rights to millions of books without having to negotiate for them individually, amounts to an abuse of the class-action process. He also contends that it does not sufficiently compensate authors and does not adequately notify and represent all the authors affected.")

• Lynn Chu: Agent Unplugged, Barbara DeMarco-Barrett's interview with this principal of Writers' Representatives LLC in the public part of the January 2010 issue of ASJA Monthly, is as helpful an analysis of what authors should know about their rights in the new electronic world as you are likely to read. It starts on pp. 6-7 of this PDF file,then jumps to p. 13. Print those pages out and mark them up! Her comments on the Google Book Settlement appear on p. 13, and her most valuable comments are on how book publishers are trying to becoming licensing agents for e-rights while taking a print publishers' share of income and without doing what a licensing agent ought to do, and since authors will very quickly learn how much they can do without the publishers, they are playing a dangerous game.

• Open Book Alliance: Diverse Coalition Unites To Counter Google Book Settlement. "One of the most significant developments in the history of publishing could be co-opted by the settlement of a class action lawsuit that creates an unprecedented monopoly and price fixing cartel," write Peter Brantley and Gary Reback in Open the Book on the Open Book Alliance blog. They claim the ettlement is bad for consumers and book-lovers; is bad for libraries and schools; is bad for authors and small publishers; and sets a dangerous and unprecedented process precedent.

• The Public Index (a site to study, discuss, browse, and annotate the settlement, section by section)

• PublishersLunch on the settlement, citing various foreign publishers and Amazon. Amazon's objection is that it is anticompetitive and amounts to price fixing; PL points out that Amazon fears a competitor with overhwelming power. "Among the objections repeated by many of the filers from abroad are assertions of problems in providing notice to class members around the world; failures to translate the entire settlement into other languages and inadequate translation of key legal terms such as "work for hire" for countries where such legal terms of art do not exist; errors in the books database that have made it difficult for rightsholders to identify all of their works; undue burdens in the process of having to opt out for historical lines of thousands of titles; and broadly incorrect classification of works in other languages as commercially unavailable."

• Science Fiction & Fantasy Writers of America statement on proposed Google book settlement. This is one of the easiest to understand statements against the settlement, covering issues of particular importance to fiction writers, and these: "the settlement makes no distinction, nor does it provide a mechanism for discovering the difference, between works deemed out-of-print and works in the public domain"; the AG and AAP "are poor representatives of the class as neither represents the types of work perhaps most significantly affected by the settlement, namely scholarly works"; the "'opt-out' mechanism proposed for the settlement contradicts the very foundation of copyright; the "the class does not reflect the interested parties, primarily the holders of copyrights in 'orphan works' where the rightsholder(s) cannot be identified or found."

Simon & Schuster has changed its standard contract language in an attempt to retain exclusive control of books even after they have gone out of print. Until now, Simon & Schuster, like all other major trade publishers, has followed the traditional practice in which rights to a work revert to the author if the book falls out of print or if its sales are low.

The publisher is signaling that it will no longer include minimum sales requirements for a work to be considered in print. Simon & Schuster is apparently seeking nothing less than an exclusive grant of rights in perpetuity. Effectively, the publisher would co-own your copyright.

The new contract would allow Simon & Schuster to consider a book in print, and under its exclusive control, so long as it’s available in any form, including through its own in-house database -- even if no copies are available to be ordered by traditional bookstores.

Other major trade publishers are not seeking a similar perpetual grant of rights.

We urge you to consider your options carefully:

1. Remember that if you sign a contract with Simon & Schuster that includes this clause, they’ll say you’re wed to them. Your book will live and die with this particular conglomerate.

2. Ask your agent to explore other options. Other publishers are not seeking an irrevocable grant of rights.

3. If you have a manuscript that may be auctioned, consider asking your agent to exclude Simon & Schuster imprints unless they agree before the auction to use industry standard terms.

4. Let us know if other major publishers follow suit. Any coordination among publishers on this matter has serious legal implications.

Feel free to forward and post this message in its entirety.

The Authors Guild (www.authorsguild.org) is the nation’s oldest and largest organization of published book authors.

Disclaimer: I am NOT a lawyer and this is NOT legal advice. I hope the material on this page will help prevent your needing a lawyer--or paying a lawyer for information you can find online. Bottom line: respect copyright because it's the right thing to do and because if you don't you may be sued for infringement.

To search for a particular topic, press Control F on Your computer. On my PC the search term then appears in a small box in lower left corner, and I can click on Next or Previous to find where (and if) term occurs on that page.

"The thing about quotes from the Internet is that it is hard to verify their authenticity."
~Abraham Lincoln

The Slow Death of the American Author (author and lawyer Scott Turow, president of the Authors Guild, NY Times Opinion pages, 4-7-13) The new, global electronic marketplace is rapidly depleting authors' income streams. In March 2013, the Supreme Court decided to allow the importation and resale of foreign editions of American works, which are often cheaper (so royalties are lower). E-books are much less expensive for publishers to produce, but instead of using the savings to be more generous to authors, the six major publishing houses all rigidly insist on clauses limiting e-book royalties to 25 percent of net receipts--roughly half of a traditional hardcover royalty.

The U.S. Constitution empowers the U.S. Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (Art. 1, Sect. 8, Clause 8)

The copyright clause allows Congress to protect and encourage the writings and discoveries of authors and inventors (no mention of publishers) -- only to the extent that they are original or inventive, and not just improvements on existing knowledge. Limitations on that protection (such as First Amendment rights and fair use) have been determined through decisions of the Supreme Court. The whole point is to encourage the advancement of knowledge.

Romenesko Speaks Dan Kennedy's excellent report on what Jim Romenesko did or didn't do wrong at Poynter, and why so many journalists rallied around him when he was at the center of a controversy about quotations and attribution (Huffington Post, 11-21-11)

"Newspapers, even if every single one of them acted in collusion, cannot establish a monopoly on news. The main source of value for newspapers is reporting on events in the real world, and since those events can’t be copyrighted, and can be reported on by radio stations and television programs and non-profits and webloggers and twitterers and and and, news online will always be a competitive business in a way music is not."
~Clay Shirky, in Why iTunes is not a workable model for the newspaper business

"Don't go into something to test the water....go in to makes waves."
~ Source unknown

“Sacred cows make the best hamburger”
~ Mark Twain

"The Internet age with its multitude of blogs and online forums has led to an explosion of writing. But the losers in this development, at least financially, appear to be the writers."
~ DPA news agency (link below to full story)